Strike 3 Holdings, LLC v. Doe
- Philip Halpern
- 7:21-cv-10096
- U.S. District Court · Southern District of New York
- 9
In Strike 3 Holdings v. Doe, Judge Halpern allowed Strike 3 to subpoena Verizon Fios for the unknown defendant’s identifying information.
Strike 3 Holdings, LLC may obtain limited identifying information about the John Doe defendant from Verizon Fios. John Doe may challenge or modify the subpoena or seek to proceed anonymously, and Verizon Fios must follow the notice, preservation, and disclosure restrictions in the order.
What happened
In Strike 3 Holdings, LLC v. Doe, Strike 3 alleged that the unknown defendant used BitTorrent to download and distribute 89 copyrighted works. Strike 3 asked to subpoena the defendant’s internet provider, Verizon Fios, before the parties’ required scheduling conference.
The court granted the request. Strike 3 may seek only the defendant’s true name and current and permanent addresses—not email addresses or telephone numbers. The court said the subpoena was justified because Strike 3 presented a preliminary copyright claim, requested limited information, and said Verizon Fios was the only entity that could connect the listed internet address to a subscriber.
Judge Philip M. Halpern also established protections for the defendant. Verizon Fios must notify the defendant, who has 60 days to challenge or modify the subpoena or seek to proceed anonymously. Verizon Fios generally may not disclose identifying information until that period ends and any challenge is resolved.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 7:21-cv-10096
- Philip Halpern
- Feb. 11, 2022
Background
Strike 3 Holdings, LLC sued an unidentified John Doe subscriber for alleged copyright infringement. Strike 3 alleged that the subscriber, associated with Internet Protocol address 100.33.253.137, downloaded and distributed 89 of Strike 3’s copyrighted adult motion pictures using BitTorrent. The defendant was known only by the Internet Protocol address.
Strike 3 filed an ex parte motion—meaning a request made without first notifying the opposing party—for permission to serve a subpoena on Verizon Fios before the parties held the conference normally required by Federal Rule of Civil Procedure 26(f). The requested discovery was intended to identify the defendant.
Court’s analysis
Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before the Rule 26(f) conference unless a court authorizes it. The court applied a flexible “reasonableness and good cause” standard and considered five factors used for early discovery in copyright cases:
- Whether the plaintiff made a concrete preliminary showing of a valid claim.
- Whether the discovery request was specific.
- Whether there were other ways to obtain the information.
- Whether the information was needed to advance the case.
- The defendant’s expectation of privacy.
The court concluded that all five factors supported the request. It found that Strike 3 had pleaded the two elements of copyright infringement: ownership of valid copyrights and unauthorized copying. Strike 3 identified copyright registrations and alleged that the defendant copied and distributed the works without authorization through BitTorrent, including identifying the alleged distribution dates and times.
The court also found the request narrowly focused because Strike 3 sought only the defendant’s name and address. It accepted Strike 3’s showing that Verizon Fios was the only entity able to connect the Internet Protocol address to the subscriber assigned to it during the relevant period. The court found the information necessary because Strike 3 could not serve the defendant without it.
Regarding privacy, the court recognized that allegations involving adult movies could cause embarrassment. It nevertheless concluded that an Internet service subscriber has only a minimal expectation of privacy in sharing copyrighted material and that Strike 3’s interest in identifying the defendant outweighed the privacy interest described in the order.
The court also acknowledged the risk of false positives—that the subscriber information might not identify the person who actually downloaded or distributed the material—and the possibility that disclosure could pressure an innocent person to settle. For that reason, it found good cause for a protective order governing the subpoena.
Order
The court granted Strike 3’s application. Strike 3 may immediately serve Verizon Fios with a subpoena under Federal Rule of Civil Procedure 45 seeking the defendant’s true name and current and permanent address. The subpoena may not seek the defendant’s email address or telephone number, and Strike 3 must attach the order and the required notice to the defendant.
Verizon Fios has 60 days after receiving the subpoena to serve the defendant with the subpoena, the order, and the notice. The defendant then has 60 days after receiving that notice to file a motion challenging or modifying the subpoena. Verizon Fios may not disclose identifying information before that period ends. If the defendant or Verizon Fios files a challenge, Verizon Fios may not disclose the information until the court addresses the challenge and directs disclosure.
If neither the defendant nor Verizon Fios challenges the subpoena during the applicable 60-day period, Verizon Fios has 10 days to produce responsive information. The defendant may also ask to proceed anonymously, and any information disclosed may be used by Strike 3 only to protect the rights asserted in the complaint. The court directed the Clerk to terminate the pending motion sequence.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.